The Road to Abu Ghraib

From the last, best hope of earth to Abu Ghraib: What has happened to the vision of America as the land of justice? In countless ways, at home and in the world, this country has abandoned its commitment to the protection of human rights.

The change is all the more stark because Americans played such a large part in creating the very concept of international human rights. The United States Congress, 30 years ago, began demanding that countries receiving U.S. aid live up to basic standards of humanity. Private organizations such as Human Rights Watch highlighted the repressive cruelties of regimes from the Soviet Union to Latin dictatorships. American constitutional rights -- guarantees of due process of law, the right to counsel, freedom of speech -- became an international standard.

That enlightened leadership seems now to belong to another age. The United States is best known now, in world human-rights terms, for its single- minded opposition to the International Criminal Court, created to bring the authors of genocide and other war crimes to justice. It has pressed country after country for guarantees that Americans will be immune from the court's process.

At its Guantanamo Bay prison camp for alleged terrorists, the United States has renounced its treaty obligations under the Third Geneva Convention. The convention requires that people held as prisoners of conflict be offered individualized hearings before a competent tribunal to determine whether they are rightly held or, as they may argue, were taken mistakenly. President Bush swept that commitment aside by finding that all the prisoners at Guantanamo were “unlawful combatants,” a term not found in the Geneva Conventions. Then his administration argued that the prisoners could not go to U.S. courts to test their detention -- until the Supreme Court rejected that position.

Perhaps the most extreme departure from American law and tradition has been Bush's claim of power to detain American citizens indefinitely, without trial or access to counsel, if he finds that they are “enemy combatants.” The Supreme Court, in the case of Yaser Esam Hamdi, held that at least the detainee must have a fair opportunity to argue his innocence before a neutral decision-maker.

It remains to be seen how this ruling will influence government practice. Since the Hamdi decision, the government has continued to use special military tribunals in Guantanamo, and several prisoners have been found to be so-called enemy combatants and returned to indefinite confinement.

Presidential policy has altered the rights and the lives of obscure individuals, who are treated in ways that used to be regarded as unthinkable. Shortly after the terrorist attacks of September 11, Attorney General John Ashcroft ordered the FBI to arrest aliens who might have a connection to terrorism. Thousands were arrested, held for weeks and months, then charged with minor immigration violations. Later we learned what happened to some of them.

One was Javaid Iqbal, whose treatment was described by Nina Bernstein in The New York Times this May. He was an immigrant from Pakistan who lived on Long Island. He was arrested there on November 2, 2001, and held for nine months.

At a federal detention center in Brooklyn, Iqbal was kicked in the stomach with steel-toed shoes, left out in the rain, and then put in an air-conditioned cell. Those are a few of the things that happened, as described by Iqbal. They fit a report by the Justice Department's inspector general, who found that alien detainees at that center were physically and psychologically abused.

Secrecy kept Iqbal's fate from his family for a long time. Attorney General Ashcroft ordered legal proceedings in the cases of alien detainees held in secret. Families were not told where the detainees were. Iqbal's 22-year-old son, Paul Harrison, a U.S. citizen, said: “I never knew what happened. I felt like he fell off the face of the earth.”

Similar secrecy has blanketed many other actions taken by the Bush administration in disregard for individual rights. Hamdi and the other American detained as an enemy combatant, Jose Padilla, have been held incommunicado in Navy brigs. The lawyer who took Hamdi's case to the Supreme Court, Frank Dunham Jr., told the Court that when he finally was allowed to meet his client, Hamdi gave an account of his actions in Afghanistan. But Dunham said he could not tell the Court about it because the government had classified everything said at the meeting.

Then there was the case of Brandon Mayfield, a 37-year-old lawyer in Aloha, Oregon. He was arrested this May for reasons unstated at the time, and held in total secrecy for two weeks. The Justice Department said only that he was a “material witness,” using a statue that was formerly used to hold potential witnesses who might flee but that has become a catchall for detentions.

Mayfield, it turned out, was suspected of a connection with the terrorist train bombing in Madrid, Spain. The FBI said his fingerprints matched some found by the Spanish police -- but the Spaniards told the FBI there was no match. In the end, the bureau admitted it was wrong, released Mayfield, and apologized.

The Mayfield case shows how the usual protections of U.S. criminal law -- the right to a hearing in public, for one -- have been drained of some of their meaning by what President Bush calls the war on terrorism. From the top of the federal government to federal prison guards in Brooklyn, there is what could be called a culture of indifference to rights.

It is hardly the first time in American history that fear has brought repression. Franklin Delano Roosevelt ordered 100,000 Japanese Americans to be taken from their West Coast homes during World War II and confined in desert camps. Fear of communism led to widespread injustice in the years of the Red Scare. Fear of terrorism may be a longer lasting justification for sweeping aside constitutional rights.

But there is another reason for the abandonment of America's commitment to human rights at home and abroad. The country is governed now by men who have shown no interest in that commitment. Ashcroft's view of free speech was made clear, after 9-11, when he said that anyone who accused the administration of violating civil liberties was siding with the terrorists. As governor of Texas, Bush sent dozens of prisoners to their death with a speed that smacked of indifference.

The point is not a partisan one. A way to test it is to imagine that the late Edward Levi, President Ford's attorney general, had been attorney general these last three years. He would have been firm on terrorism -- and firm in his defense of constitutional rights. Levi was a conservative who believed profoundly in the American system and its institution. Which is to say that he believed in law.

The Bush administration's resistance to the International Criminal Court, its callous treatment of aliens in this country, its ignoring of the Geneva Conventions, its double standard for the United States and others, its disdain for human rights -- these things are not abstractions. They have consequences: the brutalization of human beings in America and in American prisons abroad. A broader consequence is to blunt America's constructive influence on human rights globally.

In our system, freedom depends on commitment to the supremacy of law. Without that commitment, government lawyers can write memoranda justifying torture. Abu Ghraib can happen.